Street photography photographs decorated and sold as cards-am I still within legal rights?

<p>Yesterday I stopped in at the parish Arts Council Gallery. I am a member of the gallery, but not a very active one. The president of the Arts Council told me that they had had a little incident there last Christmas. A woman had come in and had become very upset when she had noticed her daughter-in-law and her grandson on one of the Christmas cards I had designed and photographed. And with that, the Arts Council president handed me the whole pack of Christmas cards I had taken in. All of them, not just the one with the daughter-in-law and grandson. She had pulled them from display last Christmas. (First of all, let me say I am not a stranger there. The Arts Council President is in constant contact with my mother who does all their posters and bulletins. I live in the same house as my mother. I am not hard to get in touch with.)</p>

<p> <img src="https://scontent.xx.fbcdn.net/v/t1.0-9/13266059_10153975604482839_4046159504795033509_n.jpg?oh=d356f37708c8fb100a6647112958d41a&oe=57D5BB54" alt="" width="432" height="648" /><br>

(Sorry about the picture quality here...the cards were printed nicely.)</p>

<p>At first, I thought, hey, it was a Christmas Parade in a little town. It's street photography. If they don't want to be in photos they shouldn't march in a parade. But then I began to wonder if my altering the photo in the way that I did, also altered the rights of using the photo. I had taken several shots of these people. I took the boy from this shot, the Santa Claus from another shot, and added them to another photo of the same three people. I cut them out and dropped in a background.<br>

So what do I actually have here? Street photography or a photograph of people from who I got no permission from. <br>

I want to add, that of course if the woman, or the gallery, had approached me with their "crisis", I would have removed the card from the gallery after which I had made clear my rights in the matter. Now, I think I have no idea what my rights were in this instance. I took many parade pictures that day and turned many of them into similar Christmas cards. Everyone else seemed to be delighted by the cards, but of course, delight does make legal rights.</p>

 

<p>I have always heard you are able to take and publish people in the street without a release unless you are using them for commercial use.<br>

I would think this is commercial use and you would need a release.<br>

I am not an attorney nor play one in Films</p>

<p>I've been looking at so many websites about this. Commercial use means using their image to sell a product. Like motor oil. Not the actual photograph itself.</p>

<p>If that were the case then all the books of street photography that are sold for profit are not legal and the same with paparazzi. If it is a public venue it is fair game.The courts have recently ruled that photographing some one in their own house if visible from the street if fair game (again this brings up the issues of drones outside third floor windows). In your case I would try to accomodate the woman but the power that is at the gallery sounds a little petty. They can sell or not sell what they want but you can offer to sell what you want and maybe be a little competition for them.</p>

If you want legal advice, ask a lawyer who has experience in this area. There is probably a volunteer lawyers

(barrister?)for the arts organization in your are that your parish arts council president knows about.

 

But beyond the legal questions may be the Arts Council just doesn't want the hassle or the risk of being perceived as being

unfriendly towards patrons.

<p>Some thoughts:<br>

<br /> Here in the UK there is no copyright in any persons face so we can create images of individuals and groups usually without any fuss. There are obvious and understandable exceptions such as not being allowed to photograph security staff and police in sensitive areas such as airports, power plants etc.<br /> <br /> Everyone has a reasonable expectation of privacy and it would be wrong to stick a telephoto lens in someone's windows without their permission. But by going into a public area we give up<em> part</em> of our privacy and I think we would all agrees on that. However, if you do not get a signed model release this is the sort of thing that can happen when you later sell the image for profit. If the images had not been used commercially (for profit) then the lady in question would have very limited scope for complaint. <br /> Most EEC countries have broadly similar laws regarding this and there are enforceable European directives on this topic.<br /> To my eyes and I think to most people the images are innocent as they do not portray anyone in a negative manner.<br /> The attitude of the Gallery is a bit weird they could have at least contacted you instead of just giving you your cards back. Bit of a storm in a tea cup.<br /> Most reputable agencies insist on a model release for recognisable people. I wont even start on property releases as that appears to be a storm brewing in the UK and probably Europe.</p>

<p>I agree with you about sticking a telephoto lens IN a window but in the case I was referring to it was a rather non special lens taking from the sidewalk or street, not private, and I do not know if the shot of the interior was the centerpiece of the photo.</p>

<p>Commercial use isn't limited to advertising a product. In this case you are selling a product that is not the photo. That is commercial use and you are required to have a release.</p>

<p>Regarding books, the photo is being used in an editorial context. Books by themselves aren't protected.</p>

<p>Personally, I would ask you to stop selling them or pay me. I don't agree with my image being used for Christmas.</p>

I've been looking at so many websites about this. Commercial use means using their image to sell a product.

 

Those websites are certainly wrong for where I live and work - (AUS) - just mentioning that as one example of the value of generic legal information from websites: as already mentioned, if you want specific advice you need to contact an expert in your area/country - or at least stipulate where you live as that would reap more targeted responses, perhaps from those with experience in your jurisdiction.

 

WW

Edited March 28, 2017 by William Michael

<blockquote>

<p>OP: If they don't want to be in photos they shouldn't march in a parade.</p>

</blockquote>

<p>These were Christmas cards you were making, right? I suppose pretty, happy, colorful holiday cards are all well and good but obviously don't always show any sort of deeper understanding of the true message of the holiday they purport to celebrate.</p>

<p>Everyone else was delighted with your actions but, as you note, delight doesn't make legal rights. And legal rights don't always make moral ones. It's probably reasonable to assume, no matter the legality of the situation, that people marching in parades may do so without giving a thought to winding up on a Christmas card on view at a local gallery despite a photographer's expectation to the contrary.</p>

<p>Street photography? Seriously? Not very much about this story strikes me as being about street photography.</p>

<blockquote>

<p>Frank Fitzpatrick: To my eyes and I think to most people the images are innocent as they do not portray anyone in a negative manner.</p>

</blockquote>

<p>I'd think photographers would be aware that a whole lot of people often don't like the way they look in pictures and wouldn't necessarily like to see such pictures go public. As a Jewish person, I'd find it very amusing to see my likeness innocently placed into a fabricated Christmas scenario but I know plenty of people of all stripes who would not find it terribly amusing at all.</p>

I tend to agree with Mr. Spirer. One need only check his biography to see that me must be very conversant with photography law.

 

The best advice is to check with an attorney. Often in these types of threads you will get advice not based on law but on opinion or common sense. Most of the time that sounds good but is dead wrong. To wit:

 

"Paparazzi take pictures of people and don't get a model release and sell those pictures for thousands of dollars to tabloids that sell hundreds of thousands of copies. That is commercial use and yet they don't get model releases."

 

Sounds good but is dead wrong. By law, that is not commercial use. It is freedom of the press,non commercial use and freedom of the press has nothing to do with the money involved.

<p>I got into a heated exchange recently with another member about speculating on people's personal motivations. I just say that everyone has thier preferences and it is their business.<br>

I mentioned street photography because it seemed to most closely paralelle the issues of where rights end and start just for speculation and discussion.<br>

When all is said and done, Jeff is right, the law is the law with lots of subtleties and we are not lawyers.<br>

However I do watch a lot of courtroom dramas, tat kind of makes us lawyers doesn't it?</p>

Donald, I referred to street photography because of the OP's title, not in reference to what you said.

<p>I realized after I posted and went back to read original post but the point is still for both of us.</p>

<p>Donald, gotcha. I'm not a lawyer so I didn't address the legality of the OP's actions.</p>

<p>I agree that the law is the law. I'm OK with photographers having wide latitude in what they shoot on the street as long as they stay within the law and am glad there are commercial use laws as well. But I do question justifications like the two statements I quoted.</p>

<p>When I shoot on the street, I'm aware some of the folk who make it into my pictures may not want their picture taken and may not even know their picture is being taken but might not like it if they did know. I am acting legally but that doesn't mean I don't recognize competing interests. I prefer to face that real-life tension. Why spin that with justifications of what others should know about their photos being taken in parades or that most people would supposedly feel fine with what I perceive to be non-negative images of them?</p>

<p>To see an example of the type of law regulating this issue, and they vary slightly by state, you can check out California Civil Code 3344. It's pretty clear from the language used that the images are being used to "solicit purchase" of the card. </p>

<p>The law is the law (how profound) and I understand that everyone has their reasons which is non of my business. But where my sympathies lis is a different and subjective. Jeff said he would not want his image associated with a Xmas card. I do not know much about Jeff but I have a sense that he would not be in a Xmas parade leading a horse in a small community. Fred is Jewish, my wife is a Russian Jew and my late son was born on Xmas day so I (born Irish catholic) have no motivations to be involved with Xmas. But this person was involved in a community and congregational event that was very public so what is her issue. Non the less that is her business but I do not think I would want to have much interaction with her.</p>

<blockquote>

<p>so what is her issue</p>

</blockquote>

<p><br />Her issue is that her image was used for a commercial product without permission. It doesn't matter what the event was, the usage is illegal and, for most people, unethical. The fact that she was in a public place in a public event has nothing to do with commercial usage. Essentially, it's a photographer violating the subject's rights, which should not be supported by other photographers.</p>

<p>Yes and I agreed with that. I said that legally she is entitled and it is really none of my business. I was stating to where my sympathies lies and being subjective. I am entitled to the same rights, it just wouldn't be a big deal to me but it was to her and I would not challenge her. Given what we are told here I just would not expect this kind of response under these conditions. I do not think that the OP intentionally, knowingly or malisciously violated her rights, in what was rather innocuous and benevolent at a public event (to me subjectively). But he did never the less break the law and I agree with you. I should not have used the words "so what is her issue". Is this a tempest in a teapot? I do not think there is a hard answer to this. I am worried that when we carry evereything to itsextreme logical conclusion we can end up with chaos.</p>

<blockquote>

<p>But this person was involved in a community and congregational event that was very public</p>

</blockquote>

<p>Donald, this one is worth thinking about. I agree that the OP did not seem malicious in his original action of taking the pictures and making the cards. But I've been surprised by some of the reactions here.</p>

<p>There seems to be a sense that there's not much difference between someone taking part in a public event and someone being photographed taking part in a public event. I'm surprised at what seems like a fundamental lack of understanding about the difference between a photograph and the event photographed.</p>

<p>A parade takes about two hours to complete. A photo stills a moment within that two-hour period. What originally takes place in fluid and continuous motion can seem very different when stilled forever in a photo. Haven't you ever noticed that you can be at a party having a great, great time and see a pic of yourself the next day from that very same party that you absolutely hate?</p>

<p>I've been making people's portraits for years and it can take many, many shots until I get a photo that the subject feels good about. Even then, they are often quite thrown off by the difference between their perception of how they look with their perception of how they look in a photo.</p>

<p>And then we come to privacy concerns in today's world. How can we not recognize what an issue that's become for so many people, for better or worse? In terms of privacy, going out for a couple of hours in public is very different from having your image immortalized on a Christmas card made available to the public.</p>

<p>I agree with you that there's no need to make a mountain out of a molehill, but I think it's kind of a big deal (for a lot of reasons beyond just this one case) that a bunch of photographers don't seem clued into what seem like fairly fundamental photographic issues of what it means to people to be photographed vs. what it means for them to willingly choose to go out in public.</p>

<p> </p>

Understood and I did say that she is entitled to her legal rights (that sounds redundant) and her reasons are non of our

business. Maybe it was more about her grandson than anything else. I did say from what we are told it seems a little

unexpected. This may go back to our other discussion. We have one picture and one paragraph, not very much to go on.

<p>This thread reminds me why I don't shoot as much street photography that has recognizable people. I usually shoot the backs of people. I have one framed because it's sort of fine art-ish and might display it in local galleries but I never considered if they were ever to be used in a book promoting my local city that I'ld have to get a release.</p>

<p>Reading most of what has been said I began to ask myself why I'm keeping shots of local festival events I took of strangers in attendance when the images don't have any personal or aesthetic weight to them. If I was to ever sell them in the future for promotion of an event or for publication used to promote and generate money I wouldn't know how to hunt down these strangers to get a release.</p>

<p>Should I just toss these sorts of images? I've got a bunch of them taken of my local park and of one wine festival. I can't believe the OP is having this much trouble over something that appears so trivial. I'm just going to stop taking pictures of people in public for fun because this amount of hassle is just not worth it. I may want to sell some of these as post cards to promote the local flavor of my tourist town. I can't get releases since I can't ID these people.</p>

It is strange, I go back to the original OP and cogitated little longer on it and find my self disagreeing with my original

thoughts. I even overlooked some current issues that my wife and I am dealing with now with a crazy person (this term

was actually applied by three attorneys involved) regarding photos. I think I will share this soon when I can give an

accurate account. I can now conceive of many good reasons why the subject had intense objections. I have a lot of

questions about the original post in order to get a better perspective but it is not worth my time (or anyone else's I believe

at this point). Maybe I just shoot from the hip too soon or maybe I learn something but I doubt I will change much at this

age.

Jeff can't be more clear. I have releases from several models. I can use those pictures commercially. I

cannot do the same for those of whom I do not have releases. Ignorance of the law is no excuse. Exigent

circumstances is not an excuse. How I feel is no excuse. Having worked for a paper editorial use is a reason

for not needing a release. Putting peoples unreleased pictures on a card that is for sale is commercial use in

the jurisdiction where I live.

<p>Whether you can do this or not varies with the country. US - check https://en.wikipedia.org/wiki/Nussenzweig_v._DiCorcia for an example that may have some bearing here.<br>

http://www.nytimes.com/2006/03/17/arts/17iht-lorca.html?pagewanted=all&_r=0</p>

<p><br />Even Tiger Woods found out you can't control your own image when it is Art. http://www.theguardian.com/world/2002/jul/07/arts.artsnews</p>

<p>Your sales barn is being conservative here and probably does not want to take any chances.</p>